In particular, the Hong Kong Regulations make amendments as follows:
Schedule 1—British National (Overseas) passport holders
Schedule 1 extends previously granted temporary skilled and temporary graduate visas (Subclasses 457,482, 485), and provides for future grants of those visas to be for five years, if the primary visa holder held a British National (Overseas) passport when the visa was granted. The changes mirror visa concessions for holders of Hong Kong passports, implemented by the Migration Amendment (Hong Kong Passport Holders) Regulations 2020. British National (Overseas) passports are granted by the United Kingdom to persons who have the nationality of British National (Overseas) by virtue of their connection with Hong Kong prior to 1 July 1997.
Schedule 1 commences retrospectively immediately after the commencement of the Migration Amendment (Hong Kong Passport Holders) Regulations 2020, which commenced on 9 July 2020. The aim is to put the holders of British National (Overseas) passports in the same position that holders of Hong Kong passports were placed in from 9 July 2020. Retrospective commencement is entirely beneficial to holders of these visas and therefore accords with section 12 of the Legislative Instruments Act 2003.
Schedule 2—Pathways to permanent residence
Schedule 2 creates pathways to permanent residence for temporary skilled and temporary graduate visa holders from Hong Kong, and their family members, who come within the concessional arrangements for both Hong Kong passport holders and British National (Overseas) passport holders:
· for primary visa holders who have lived, worked and studied exclusively in a designated regional area, access to permanent residence after three years via a new stream in the Subclass 191 Permanent Residence (Skilled Regional) visa;
· for all primary visa holders, access to permanent residence after four years via a new stream in the Subclass 189 (Skilled – Independent) visa; and
· for all members of the family unit of the primary visa holders that are eligible for the permanent visas. There are no age restrictions on dependent children, but they are required to be still living with their parents in Australia to be eligible.
Schedule 2 commences on 5 March 2022 in line with the systems release of the new visa streams.
Schedule 3—Commencement of Schedule 3 to the Migration Amendment (New Skilled Regional Visas) Regulations 2019
Schedule 3 brings forward the commencement of Schedule 3 to the Migration Amendment (New Skilled Regional Visas) Regulations 2019 from 16 November 2022 to 5 March 2022.
The Subclass 191 Permanent Residence (Skilled Regional) visa was created by the Migration Amendment (New Skilled Regional Visas) Regulations 2019, with a commencement date of 16 November 2022 (three years after the commencement of the pre-requisite provisional visa which must be held for three years). However, as the new stream relating to the Hong Kong concessions is created in this subclass, and there will be persons eligible for the new stream by March 2022, commencement has been brought forward from 16 November 2022 to 5 March 2022 (in line with systems release of the new stream). This allows eligible temporary skilled and temporary graduate visa holders from Hong Kong to apply for the stream as soon as possible.
The matters dealt with in the Hong Kong Regulations are appropriate for implementation in regulations rather than by Parliamentary enactment. It has been the consistent practice of the Government of the day to provide for detailed visa criteria and conditions in the Migration Regulations rather than in the Migration Act itself. The Migration Act expressly provides for these matters to be prescribed in regulations, as can be seen in the authorising provisions listed at Attachment A. These include, for example, subsection 31(3), which provides that the regulations may prescribe criteria for a visa or visas of a specified class.